Section 596 of the Fair Work Act 2009 (Cth) (FW Act) provides that a party to a proceeding before the Fair Work Commission (FWC) may be represented only with the permission of the FWC. It follows that parties seeking to be represented in the FWC are routinely directed to make submissions addressing the criteria set out in s.596(2) of the FW Act.
Historically, this has included disputes brought under s.739 of the FW Act which relate to a dispute resolution procedure (DRP) in an industrial instrument. However, in a recent decision of the FWC in Martin Nash v PHI (International) Australia Pty Ltd [1], a party to a dispute was refused permission to be represented based on the drafting of the DRP, which the Member held only allowed for the initiating party (in this case, the employee) to be represented.
The facts
Three casually employed pilots raised a dispute with their employer under the DRP in their enterprise agreement. The dispute concerned pay-related issues that were not resolved at the workplace level. The employees filed proceedings in the FWC and were represented by their union.
The Respondent employer made a jurisdictional objection to the proceedings, sought permission to be legally represented at the hearing of their objection and made submissions pursuant to s.596(2). The Applicants objected to the Respondent’s application on the basis that the DRP did not allow the Respondent, as the ‘non-initiating party’ to the dispute, to be represented.
The relevant clause in the enterprise agreement stated:
“A person(s) initiating a dispute may appoint and be accompanied and represented at any stage by another person, organisation or association, including a Union representative or Company association in relation to the dispute…”.
Deputy President O’Keefe considered the DRP had used ‘plain and unambiguous language’ to require that only the party initiating the dispute could be represented. In the absence of a specific right for a non-initiating party to be represented, the Deputy President refused the employer’s application.
In his reasoning, the Deputy President noted he would have granted permission if ‘based solely on s.596(2)’.
Interaction of the Dispute Resolution Procedure and the FW Act
In deciding against permitting representation for the employer (as the non-initiating party), the FWC referred to relevant case law concerning the interaction between a DRP and the FW Act. The Deputy President purported to rely on the decision of Commissioner Hampton (as he then was) in Shop, Distributive and Allied Employees Association v Woolworths (South Australia) Pty Ltd & Woolworths Group Ltd [2] as authority for the finding that a DRP can in effect, limit ‘the operation of s.596(2) and thereby the FWC’s discretion regarding representation’. He found that limitations imposed by the parties to an enterprise agreement can in effect override the way the FW Act would otherwise require the FWC to deal with private arbitration matters.
Insights
It is common for DRPs in modern awards and enterprise agreements to provide that a party to the dispute may be represented in any step of the procedure. Indeed, this standard DRP clause in modern awards arguably includes an express right to representation.
Yet even in those circumstances, parties will routinely be directed by the FWC to file submissions addressing the criteria in s.596 of the FW Act, if seeking leave to be represented. Where parties have made submissions in respect of the express right to representation in the DRP they have at times been left unanswered or given little consideration and permission is granted under the provisions of the FW Act.
This recent decision of Deputy President O’Keefe may seem to be somewhat out of step with this routine practice of the FWC. However, the Deputy President’s decision is compelling as it places the agreement between the parties as to the powers and limitations of the FWC in private arbitration as paramount.
Key takeaways
The decision is a timely reminder for parties negotiating an enterprise agreement to pay close attention to the drafting of their agreement and in particular, to the DRP and include a provision allowing for representation. Parties who have negotiated an express right to representation now have a precedent to rely on when seeking to be represented pursuant to the terms of the DRP, as agreed between the parties to the dispute.
[1] [2024] FWC 1795
[2] [2021] FWC 617
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